Superheroes and International Law

International law is one area of the law that we haven’t talked about all that much yet, with the exception of this post on supervillain lair locations. We’ve also talked about immigration and even export control laws, but these are actually considered part of domestic law because their subject matter is essentially the management and control of national borders. True international law has to do with the law of nations, also known as “public international law” and conflict of laws, i.e. deciding which law applies in a given situation, known as “private international law.” International law also includes things like treaties and the UN, i.e. the agreements that nations have with each other in their sovereign capacities.

There are a number of places where comic book stories run up against various international law issues, including trans-national groups like S.H.I.E.L.D. and the actions of superheroes in other countries. Most of the issues we’ll discuss here have to do with public international law, as private international law is 1) way more technical, and 2) not nearly as controversial. Private international law grew out of international commerce to a significant degree, as merchants importing and exporting goods needed to be able to resolve disputes across and between international borders. While the status of human rights and national sovereignty are deeply ideological, merchants 1) mostly just want to know what the law is rather than what it ought to be, and 2) aren’t predisposed to tolerate long and drawn out theoretical disputes. They get in the way of business. So private international law is, by and large, pretty efficient. But as our heroes aren’t generally engaged in, say, the carriage of goods by sea, public international law is where our focus will lie.

Perhaps the most obvious issue for our heroes are organizations like S.H.I.E.L.D.. The exact nature of the organization is somewhat in doubt, as various writers have inconsistently depicted it as being either a US or a UN entity, but the consensus appears to be that it is an agency of the latter. Which poses some interesting problems, because the UN does not actually possess any jurisdiction of its own, not being a sovereign state. Rather than existing on its own or as the expression of the political will of its citizenry, the UN exists at the behest and pleasure of its member states and cannot take any action without their authorization. The UN does not have an army of its own and is not capable of raising one. UN Peacekeepers are, in fact, soldiers of member nations operating under the flag of the UN but still part of their own nation’s chain of command. The ability of UN Peacekeepers to act on their own initiative, outside the generally narrow terms of engagement with which they are authorized, is severely limited. For example, UNAMIR, the peacekeeping force in Rwanda, largely stood back as the Rwandan genocide of 1994 took place. The force is thought to have been capable of putting a stop to the violence, but it lacked the legal authority to do so, leading to the deaths of an estimated 850,000 people.

What, then, are we to make of S.H.I.E.L.D.? The basic idea is that the organization was chartered to deal with the threat posed by either HYDRA or superhuman/supernatural threats more generally. Which is a plausible idea on the face of it, except for the fact that the UN really hasn’t proved all that effective a means for dealing with purely human threats. The Korean War is the last and only time when the UN has unambiguously authorized full-scale military action of any sort, and that only because the USSR stormed out in protest (which, in retrospect, was a really silly mistake that they never repeated). The current wars in which the US is engaged are not really authorized by the UN, despite a more-or-less broad spectrum of support from a variety of US allies. The idea that a technologically advanced, militarily powerful, international strike force could be authorized by the UN beggars belief. Such an agency could, in fact, exist, but every single deployment would require the authorization of the member states, so the potential scope of authority in each engagement is likely to be very limited.

No, S.H.I.E.L.D. seems to represent what the UN might or even arguably should be, but it doesn’t really represent the way the UN actually is today.

But what about the possibility that S.H.I.E.L.D. is actually just a top-secret US military force? That clears up a lot of problems, like the question of why it can exist in the first place, and it doesn’t necessarily introduce any new problems that aren’t already in play in the real world. A top-secret military agency running missions of high-level importance that never make it to the public eye and to which other governments don’t object? We’ve got, what, half a dozen of those? Sometimes the other government doesn’t object because the State Department throws its weight around. Sometimes it’s because they’ve invited us in to do the job. Other times they don’t even know about it. Is it legal? Not technically. Running military operations inside the borders of another country is generally considered to be casus belli.

But if one side decides not to make an issue out of it, which as discussed they might not for a variety of reasons, that’s more or less the end of it. There isn’t really anything like an international court to which nations can bring their disputes (outside of narrow areas like trade disputes brought before the WTO). No one and nothing has jurisdiction over sovereign states as such, and getting a national government to do something involves either diplomacy or war. If one of the nations is positioned like the US, which, for good or ill, holds most of the cards in many situations, there isn’t a whole hell of a lot the other state can do about US actions they don’t like other than complain. Now that wouldn’t be true for countries like China, Russia, or even some of our more prominent allies like the UK. But pretty much anywhere in South America or Africa and a good chunk of Asia is more or less fair game.

Now make no mistake: this would actually involve the US violating international law in pretty significant ways. But not in ways that we aren’t (probably) doing that already. So while it isn’t the optimal way of setting up something like S.H.I.E.L.D., it’s certainly a plausible one.

15 responses to “Superheroes and International Law”

I wouldn’t blame you for not reading the X-Tinction Agenda. It was pretty bad. It is relevant, however, because the U.S. government gave the X-Men intel about Genosha and said “The United States government does not support any incursion into Genosha *nudge* *nudge* *wink* *wink*” The X-Men boarded two jets, flew off to Genosha and over the course of nine issues took down a foreign government, albeit one which was enslaving and experimenting on its mutant population. Eventually Magneto took over the country and remained in control until some anti-mutant super villain detonated a weapon of mass destruction that decimated the island nation. Depressing stuff. Anyway, it’s interesting that Marvel paid lip service to international law: the United States armed forces -including S.H.I.E.L.D.- cannot invade sovereign countries even if the country is ruled by a super villain. (This came out before the latest Gulf War.) Of course, when super heroes do invade other countries and fight super villains there I guess this makes them terrorists or (in the case of the Avengers who get paid) mercenaries.

Actually things like invasions can be legal*, it’s simply that currently the international dislike for new wars is so strong that only a very strong nation capable of keeping the U.N disunited (or one acting for that strong nation) can get away with it (such as the U.S and Russia).

*Or at least they might not be illegal. The U.N charter does prohibit signatories from going to war except for defense or with U.N permission but definitions of ‘defense’ can get stretched a lot. Also it’s always possible for a state to just ignore the U.N.

A very interesting take. But I wish you had brought in organizations like Checkmate and independent heroes/ teams. Would they share Shield’s limitations or be as Martin says- terrorists and mercenaries?

Depends on which version of Checkmate. As written by Paul Kupperberg, they were an arm of US policy. Written by Rucka and Trautman, they were United Nations-chartered and walked a very fine line indeed regarding their relations with each of the Permanent Five on the UN Security Council, with the US under the Horne Administration as respresented by Amanda Waller still viewing it as theirs to use as a club against any nation stepping “out of line”.

Not sure if I am misunderstanding your blog entry, but I think you may have made a mistake, or at least an omission. You write that: “There isn’t really anything like an international court to which nations can bring their disputes (outside of narrow areas like trade disputes brought before the WTO). No one and nothing has jurisdiction over sovereign states as such, and getting a national government to do something involves either diplomacy or war.” In a broad sense, this is true, just as use of police force may ultimately be required to bring a recalcitrant domestic criminal to book.
However, there is an international court with broad-ranging jurisdiction over international conflicts, namely the ICJ. This body has adjudicated disputes between states before, and continues to do so. The United States no longer recognizes the Court’s jurisdiction as a general principle, since it found against the US in the 1984 “Nicaragua case.” Nevertheless, it is very much still in existence, and its decisions are (nominally) enforced by the Security Council.

It’s true that the ICJ exists, but the veto power of the permanent members of the Security Council over its decisions means that few cases of any significance are decided there. Here’s all of the ICJ’s cases since its founding; many of them are pretty minor disputes. Compare that to the WTO, which pretty regularly hands down enforceable decisions. Note also that the WTO cases much more frequently involve Security Council members like the United States.

Back in the ’60s, the THUNDER Agents letter columns occasionally had comments from fans pointing out that fighting Commies probably wasn’t the best direction for a UN-sponsored organization with so many Communist leaders would need to give their blessings.

I wonder, though. In the THUNDER case (and SHIELD, as I recall), the idea was that orders came down through some imaginary chain of command to the heroes as formal missions. That, as pointed out, makes no sense.

However, what about in a case closer to Justice League International? There, the UN provided funding, facilities, and organization, and then mostly gave the costumed employees a relatively free hand in terms of their operations. Is it possible that such a group is feasible based more along relief lines than military? After all, not even SHIELD really goes around staging coups and assassinating dictators.

That seems unlikely to me for four reasons. The first is that even that is really beyond the powers of the U.N. The second is that (by your description) providing organization, funds and facilities to such a group the U.N is taking some amount of responsibility for their actions (politically at least). Third is the fact that the U.N member states (a large number of which are authoritarian) would inevitably protest against the idea and take every option possible to stop it. Lastly other aid agencies would be disturbed because an organization like the JLI is inherently oriented towards combat which greatly damages the credibility of other aid agencies*.

*There are reasons why you have to wait for years after leaving the Red Cross to join the CIA.

No offense meant, but I felt that I should point out a major flaw in Marvel comics that you missed. The idea that the U.S could actually dissolve something that is generally depicted as a U.N organization. The U.S can always decide it’s not going to fund S.H.I.E.L.D but for some reason the writers thought that the U.S could actually order the dissolution of a U.N organ and replace it with another*.

*Personally I’m of the opinion that the writers just don’t understand international politics.

Being a member of the Permanent Five, the USA could have simply vetoed a Security Council funding-continuance resolution re: SHIELD as soon after the events of Secret Invasion as turned out to be practical. SHIELD being at that point a body answerable to the Security Council, as opposed to the General Assembly…I do wonder if the General Assembly could have done anything to repudiate the Security Council veto.

Not that such a story would have served Marvel Editorial’s goals at that point, mind you…but that’s a subject for another blog altogether!

(NOTE: My knowledge of International Law may be flawed, so feel free to correct me)

I always thought of the “SHIELD as part of the UN” thing as being something like the World Bank Group. The World Bank is technically a part of the UN system, but it’s president is ALWAYS American, and the the structure of the group means the US and it’s allies can essentially make it do whatever. I always thought of SHIELD as being like that during the times where it was shown as a UN-related operation.

You point out that UN peacekeeping forces are not the property of the UN but rather ‘on loan” from their member nations. Could SHIELD fall into this category? This might solve a lot of the mentioned problems; the times when SHIELD appears to be acting as a UN organization could be explained as times when SHIELD was “on loan” to the UN as a peacekeeping force, and thus operating at the behest of the UN, while remaining an American-owned agency?

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On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.